Powers v. David , 6 Ala. 9 ( 1844 )

GOLDTH WAITE, J.

1. The first assignment of error is not sustained, in point of fact, by the record, as there is a complaint in writing sent up by the magistrate. It is true, this complaint bears a date nearly two years subsequent to the other proceedings, but this does not authorise'the inference that it has been interpolated. On the contrary, the presumption is strong that the date is a mere clerical error, and such we feel constrained to consider it. The consequence is, that this assignment is unavailable.

2. Next in order, as the second and third assignments have been abandoned, is the fourth; and this also cannot be considered for the same reason that the record does not show the fact upon which the error is supposed to arise. Waiving any consideration of the question, it is certain that no part of the record shows that the trial was had at the place asserted by the assignment, or indeed at any other place liable to exception. It is not competent for a party in an appellate court, to present a fact by affidavit which the record does not disclose. There was then no error in refusing to consider the affidavit, and without it, the question of jurisdiction no where appears.

3. It is next asserted, there was no issue, and its absence is insisted on as a fatal defect. This would not be the consequence even if the parties had both appeared, for the course of practice is to presume its existence when the parties have gone to the jury. But the statute which governs these proceedings expressly directs the justice of the peace, when the defendant does not appear, or appearing, does not plead, to proceed in the same manner as if he had pleaded not guilty. [Clay’s Dig. 252, § 10.] The inference that the defendant did not appear, is very strong, and the proceedings seem to be quite regular if such was the fact, and not defective in this respect if it was otherwise.

4. It is true there is no formal judgment in this case, nor are we aware that it is usual to render one in these proceedings any more than in other suits before courts of this description. Tht statute makes it the duty of the justice of the peace to record thi verdict and give judgment thereon with costs. [Clay’s Dig. 252 § 13.] To expect technical precision and adherence to form ir. this class of our courts, would not only end in disappointment but would also very frequently work great injustice to suitors by-causing reversals of judgments for reasons not affecting the justice of the conclusions arrived at. The verdict in this case, is general and must be applied to the complaint before the jury, for no inference is admissible that the unlawful detainer found by them, referred to any other lands, or any other offences than those described in the complaint; and as by reference to that, the lands and the offence can be ascertained with precision, the judgment must be considered formal, as it can be made correct. This construction is in accordance with a practice now well established and sustained by numerous decisions. [Spann v. Boyd, 2 Stew. 480; Wyatt v. Judge, 7 Porter, 37.]

We are satisfied there is no error in the case to which our attention is directed by the assignments, sufficient to reverse the judgment. Judgment affirmed.